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AFP, Washington Post Violated Daniel Morel's Copyrights, Judge Says

A federal court in New York has ruled that Agence France-Presse(AFP) violated photographer Daniel Morel's copyrights by distributing his images of the 2010 Haiti earthquake without permission.

The copyright infringement claims turned on whether the terms of service for Twitter, the social network that Morel used to distribute his images of the earthquake, gave AFP the legal right to download the images and re-distribute them.

"The Twitter TOS [terms of service] provides that users retain their rights to the content they post--with the exception of the license granted to Twitter and its partners--rebutting AFP's claim that Twitter intended to [give AFP license] to sell Morel's photographs," a US District Court judge in New York said. On that basis, the judge concluded that AFP was liable for copyright infringement.

The court also found The Washington Post, which published the images, liable for infringement.

But the court declined to rule on whether the infringement was willful. The court left the question of willfulness, which will determine how much in damages the defendants will have to pay to Morel, for a jury to decide

At the same time, the court declined to grant summary judgment on the question of whether Getty Images was liable for infringement. Getty used a different defense from AFP and The Washington Post, saying it was protected from Morel's claim by the Digital Millennium Copyright Act--not the Twitter terms of service. The DMCA gives internet service providers protection from infringement claims if they act in a timely manner to take down allegedly infringing material quickly.

Morel argued that Getty does not qualify as a service provider, so the photo agency can't claim immunity under the DMCA. But the court declined to grant summary judgment for either party because it "encountered an issue of fact regarding whether Getty qualifies as a service provider."

In other words, the question of Getty's liability for infringement also has to be decided at a trial, by a jury.

Morel happened to be in Haiti at the time of the January 2010 earthquake there. He posted exclusive images of the destruction on his Twitpic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them through its own image service and through Getty under the false credit.

Morel's agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn't purge the images with the false credits, and continued to distribute them.

The Washington Post was initially unresponsive to Morel's take-down notice, according to the photographer, and the newspaper finally took down some of his images--but not all of them.

Morel has maintained that the companies violated his copyrights willfully because at least some of their photo editors knew the images in question were his, not those of the other Twitter user who stole the images.